LIPTON v. THE NATURE COMPANY, 71 F.3d 464; 1995 U.S. App. LEXIS 33240; 37 U.S.P.Q.2D (BNA) (2nd 1995)

At issue in this case is a compilation of "terms of venery" n2 --collective

terms for identifying certain animal groups--gathered and published by the

author and etymologist James Lipton in his book, An Exaltation of Larks. The

first edition of the book was published in 1968, and two subsequent editions

were published in 1977 and 1991.

Lipton compiled his terms of venery through research of various

fifteenth-century texts and manuscripts. According to Lipton, he translated the

terms from Middle English to modern English and arranged them based on their

"lyrical and poetic potential." The first and second editions of the book, which

include scattered illustrations and explanatory text, were a

considerable success and have sold over 150,000 copies to date. In 1990, in an

attempt to further capitalize on the success of his book, Lipton sought to

license his compilation for use on various products. In the course of doing so,

he discovered that Nature had already licensed the rights to a virtually

identical compilation of terms of venery from the defendant, Wein.

A comparison between the selection and arrangement of terms in Lipton's book

and the selection and arrangement of those on the scarf leads us to conclude

that the two are "strikingly similar." Accordingly, we find that scarf infringed

on Lipton's copyright. First, the scarf includes essentially the same

selection of animal-related terms as Lipton's book. In principle, the scarf

could have included any of the hundreds of animal terms listed in various

fifteenth century texts and other resources, but in fact, it mimics the list in

Lipton's book almost exactly. Out of the 77 different animal terms of venery

that appear in the first edition of An Exaltation of Larks, 72 of them are

listed on the scarf. Indeed, the scarf includes only one animal term--"covey of

quail"--that does not appear in the Lipton compilation. Furthermore, the scarf

contains at least six translation errors that existed in Lipton's first two

editions. Although some of those errors do exist in other sources, they further

support our conclusion that the scarf could not have selected the same terms

independent of Lipton's book.